Prolonged Sitting and Office Clerks, General

Last week, we discussed office clerks, general as a basis for the continued viability of Table 1 of the Medical-Vocational Guidelines.  A person under  the age of 50 and restricted to the full range of sedentary work without the presence of transferable skills has a directed decision of "not disabled."  Most of the production related occupations no longer exist in any significant numbers at the sedentary range.  General office clerks continue to represent about 605,000 unskilled sedentary jobs in the nation.  That is clearly a significant number of jobs.

For this exercise, we assume no cognitive, social limitations, or manipulative limitations in performing unskilled work.  The deficit we do assume is a medically-based limitation to six hours of sitting in an eight-hour day.

43-9061.00 Office Clerks, General

Series ID: ORUP1000075800000133

Not seasonally adjusted

Series Title: office clerks, general; hours of sitting (10th percentile)

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: hours of sitting (10th percentile)

Year	Period	Estimate
2018	Annual	3.75

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000133

Series ID: ORUP1000075800000134

Not seasonally adjusted

Series Title: office clerks, general; hours of sitting (25th percentile)

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: hours of sitting (25th percentile)

Year	Period	Estimate
2018	Annual	5.25

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000134

Series ID: ORUP1000075800000135

Not seasonally adjusted

Series Title: office clerks, general; hours of sitting (50th percentile - median)

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: hours of sitting (50th percentile - median)

Year	Period	Estimate
2018	Annual	6.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000135

Standing/walking more than occasionally disqualifies an occupation from classification as sedentary.  The 10th and 25th percentiles describe work that is not sedentary:

8 / 3 = 2.67

8 - 2.67 = 5.33

Sitting 5.25 hours per day is less than 5.33 hour per day. SSR 83-10 states as a matter of agency policy:

Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing -- the primary difference between sedentary and most light jobs.

This observation fits with the classification of 73.3% of general office clerks as requiring sedentary exertion.  The 25th percentile cannot represent sedentary work.  

Series ID: ORUP1000075800000661

Not seasonally adjusted

Series Title: % of office clerks, general; strength is sedentary

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: strength is sedentary

Year	Period	Estimate
2018	Annual	73.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000661

Sedentary work starts at about the 26.7 percentile.  Now we make some assumptions about the line between the 25th percentile and the 50th percentile.  Assume that the line is straight.  The difference between 6.4 and 5.25 is 1.15 hours of sitting in a day.  We account for 25 percentile increase, so divide 1.15 by 25.  That gives us 0.046 hours increase in the amount of sitting per percentile point increase.  Moving to the 26.7th percentile (a 1.7 percentile increase) yields 0.0782 hours.  Adding 5.25 to 0.0782 equals 5.3282.  Round that up and we get 5.33 hours, the absolute minimum for sedentary classification.  

What we really need to know is where the work crosses that 6 hour line.  This is a 0.75 increase from the 25th percentile.  

0.75 / 0.046 = 16.30345

The 6 hour mark is at the 41.3 percentile.  Stated differently, 41.3% of general office clerks sit 6 hours per day or less.  Of those general office clerks that do not sit more than 6 hours, most of the require more than sedentary exertion.  That leaves 15% of general office clerks that engage in sedentary exertion and sit 6 hours per day or less.  

Last week, we calculated that general office clerks engaged in unskilled work in 825,860 jobs.  If 15% of unskilled work is sedentary, then the number of sedentary unskilled general office clerks that sit 6 hours per day or less is 123,879 jobs.  

That calculation rests on the assumption that the person can both sit up to 6 hours and stand/walk up to 2.67 hours.  If the person can stand/walk 2 hours in a day, that person can perform jobs at the 41.3 percentile mark and no others.  Without the flexibility to stand/walk the full range of occasionally, a worker that cannot sit more than 6 hours is limited to 8,259 jobs. 

See When to Use Occu Collect.

The Assessment of Risk for Social Security Act Fees

In the last year for which the Social Security Advisory Board reports the full array of data for federal court proceedings (2013), claimants sought judicial review in 19,041 cases.  The courts reversed and awarded benefits in 387 cases in 2013.  The courts remanded in 6,811 cases in 2013.  The courts affirmed in 16,082 cases.  Claimants won either benefits or a remand in 44.76% of cases.   Allowance rates on remand typically hover around 60%.  Using the published remand/reversal rates and assuming 60% of cases are paid after remand, the odds of getting paid fees under sec. 406(b) are about 27.8%.  The risk of not getting paid is 72.2%.  The delay in getting paid from complaint to fees is measured in years.  Risk and delay are important factors in taking Social Security cases to federal court.

In assessing the risk of taking a cases where the claimant obtained reversal or remand and eventually got paid benefits is the problem.  Playing the game of "where's Waldo" is pretty easy after someone circled Waldo with a sharpie.  We just cannot miss him.  There he is.  Who could miss him?  That is the post mortem exercise in assessing risk -- this was the easiest remand that anyone could have ever obtained.  Kinderspiel, child's play.

But the contingency fee contract is signed before services began.  The contract after-the-fact bears no risk of non-payment and is contingent on nothing.  The parties know the outcome.  Justice Scalia in dissent recognized this before the fact inquiry into the reasonableness of the fee:

I think it obvious that the reasonableness of a contingent fee arrangement has to be determined by viewing the matter ex ante, before the outcome of the lawsuit and the hours of work expended on the outcome are definitively known.

 Scalia goes on to advocate a lodestar calculation of fees.  But that is clearly not how the majority read the statute.  The eight-justice majority settles the issue:

Courts that approach fee determinations by looking first to the contingent-fee agreement, then testing it for reasonableness, have appropriately reduced the attorney's recovery based on the character of the representation and the results the representative achieved.

If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. See id., at 747 (reviewing court should disallow "windfalls for lawyers").

Risk is not part of the assessment.  It is the character of representation and the results achieved.  A perceived windfall is a basis for lowering the percentage of the recovery.  Justice Scalia's concerns about ex ante and ex post risk assessment are misplaced.  The parties bargain for that risk assessment as part of the contingent fee contract that the courts should start with in assessment reasonableness.

But if risk assessment is part of the calculus, then a multiplier of 4 is in order.  Contingency fee lawyers don't take risk and endure the delay of getting paid to break even, they engage in a contingent fee practice to get ahead.  The risk-reward assessment requires a positive outcome to the lawyer. 

Sedentary General Office Clerks -- A Continued Basis for Table 1 of the Medical-Vocational Guidelines

The Medical-Vocational Guidelines (grids) state that "'Sedentary work' represents a significantly restricted range of work, and individuals with a maximum sustained work capability limited to sedentary work have very serious functional limitations."  The Dictionary of Occupational Titles (DOT) lists 137 unskilled sedentary occupations.  Based on current data, 77 of those occupations represent no jobs.  The remaining 60 occupations represent approximately 1.4 million jobs in the national economy.  

That really is not accurate.  The remaining 60 occupations are in occupational groups that represent 1.4 million jobs in the national economy.  That is the more accurate statement.  About 45% of those jobs fall into the category of office clerks, general (SOC 43-9061).  The three occupations in the group are not good examples and probably don't exist in the national economy as described in the DOT in significant numbers that provide for substantial gainful earnings on a sustained basis.  The three occupations:

205.367-030 election clerk
249.587-014 cutter-and-paster, press clippings
249.587-018 document preparer, microfilming

Election clerk works during the election cycles, twice a year.

ELECTION CLERK (government ser.)

Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and format when allowed by margin space, using paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and filming priority schedule.

That is not a good example of full-time  work representing a significant number of jobs in the national economy.

Cutter-and-paster, press clippings work with paper media.

CUTTER-AND-PASTER, PRESS CLIPPINGS (business ser.)

Tears or cuts out marked articles or advertisements from newspapers and magazines, using knife or scissors. Records name of publication, page and location, date, and name of customer on label, and affixes label to clipping.

Few people if anyone does that anymore.  These jobs are probably obsolete in the modern economy.

Document preparer, microfilming is similarly obsolete.

DOCUMENT PREPARER, MICROFILMING (business ser.)

Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and format when allowed by margin space, using paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and filming priority schedule.

And that brings up to the Occupational Outlook Handbook (OOH).

 43-9061 Office clerks, general

Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	None
Typical On-The-Job Training Needed to Attain Competency	Short-term on-the-job training
2016 Employment	3,117,700

We have been down this path before.  The typical education is a high school diploma or equivalent and the typical on-the-job training is 30 days or less.  The question is whether these occupations represent sedentary unskilled work and if so, how many jobs.  We start with Labor's statement that the O*NET provides current occupational information.  

43-9061.00 - Office Clerks, General

Structural Job Characteristics	%	Response
Duration of Typical Work Week — Number of hours typically worked in one week.	15	More than 40 hours
	59	40 hours
	26	Less than 40 hours
Exertional	%	Response
Spend Time Sitting — How much does this job require sitting?	60	Continually or almost continually
	25	More than half the time
	7	About half the time
	8	Less than half the time
	0	Never
	%	Response
Spend Time Standing — How much does this job require standing?	1	Continually or almost continually
	7	More than half the time
	12	About half the time
	72	Less than half the time
	9	Never
	%	Response
Spend Time Walking and Running — How much does this job require walking and running?	4	Continually or almost continually
	14	More than half the time
	14	About half the time
	32	Less than half the time
	36	Never

About 74% of the jobs are presumptive substantial gainful activity as full-time work; 60% sit the vast majority of the day; relatively few spend the majority of the day standing/walking.

43-9061.00 - Office Clerks, General

On-the-Job Training
Duration	Value
None or short demonstration	4.85%
Anything beyond short demonstration, up to and including 1 month	27.91%

Related Work Experience
Duration	Value
None	7.72%
Up to and including 1 month	1.14%

Required Level of Education
Education Level	Value
Less than a High School Diploma	1.5%
High School Diploma or the equivalent	40.59%

The O*NET Resource Center suggests that less than 9% of these jobs would not require some skills.  Related work experience is a component of Specific Vocational Preparation along with education and on-the-job training.  We check the O*NET OnLine and Resource Center data against the Occupational Requirements Survey (ORS).  

43-9061.00 - Office Clerks, General

Series ID: ORUV1000075800000064

Not seasonally adjusted

Series Title: % of office clerks, general; svp is short demonstration only

Requirement: Education, Training, And Experience

Occupation: Office Clerks, General

Estimate: svp is short demonstration only

Year	Period	Estimate
2018	Annual	4.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000064

Series ID: ORUV1000075800000065

Not seasonally adjusted

Series Title: % of office clerks, general; svp is beyond short demonstration, up to & including 1 month

Requirement: Education, Training, And Experience

Occupation: Office Clerks, General

Estimate: svp is beyond short demonstration, up to & including 1 month

Year	Period	Estimate
2018	Annual	31.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000065

Series ID: ORUP1000075800000661

Not seasonally adjusted

Series Title: % of office clerks, general; strength is sedentary

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: strength is sedentary

Year	Period	Estimate
2018	Annual	73.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000661

Series ID: ORUP1000075800000134

Not seasonally adjusted

Series Title: office clerks, general; hours of sitting (25th percentile)

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: hours of sitting (25th percentile)

Year	Period	Estimate
2018	Annual	5.25

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000134

Series ID: ORUP1000075800000135

Not seasonally adjusted

Series Title: office clerks, general; hours of sitting (50th percentile - median)

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: hours of sitting (50th percentile - median)

Year	Period	Estimate
2018	Annual	6.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000135

Series ID: ORUP1000075800000136

Not seasonally adjusted

Series Title: office clerks, general; hours of sitting (75th percentile)

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: hours of sitting (75th percentile)

Year	Period	Estimate
2018	Annual	7.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000136

Series ID: ORUP1000075800000139

Not seasonally adjusted

Series Title: % of office clerks, general; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: Office Clerks, General

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2018	Annual	81.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000075800000139

Series ID: ORUV1000075800000085

Not seasonally adjusted

Series Title: % of office clerks, general; literacy is required

Requirement: Education, Training, And Experience

Occupation: Office Clerks, General

Estimate: literacy is required

Year	Period	Estimate
2018	Annual	15

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000085

Series ID: ORUV1000075800000075

Not seasonally adjusted

Series Title: % of office clerks, general; no minimum education requirement

Requirement: Education, Training, And Experience

Occupation: Office Clerks, General

Estimate: no minimum education requirement

Year	Period	Estimate
2018	Annual	15.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000075

Series ID: ORUV1000075800000076

Not seasonally adjusted

Series Title: % of office clerks, general; minimum education level is a high school diploma

Requirement: Education, Training, And Experience

Occupation: Office Clerks, General

Estimate: minimum education level is a high school diploma

Year	Period	Estimate
2018	Annual	78.7

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000076

The ORS describes a large segment of the work as unskilled and 73.3% as sedentary. 

43-9061.00 - Office Clerks, General

Office clerks, general		Jobs
Total reported jobs		3,117,700
Full-time (O*NET)	74.2%	2,313,333
Unskilled (ORS)	35.7%	825,860
Sedentary (ORS)	73.3%	605,355

More than half require sitting more than 6 hours per day. Over 80% of the jobs permit discretion of when to perform sitting versus standing/walking tasks.  Workers without a high school or equivalent education can perform 15.2% of the jobs.  Workers illiterate in English can perform must 0.2% of jobs.  

Even for workers without a high school equivalent education, the number of jobs is over 90,000.  A combination of a limitation on sitting and a limited education would leave around 25,000 jobs.  This occupational group remains viable for sedentary unskilled workers absent a combination of three or more limiting factors eroding the capacity for sedentary work. 

Look for the Occu Collect Calculator as part of the Sedentary Compendium breaking down the number of unskilled sedentary jobs in the national economy at OccuCollect.com in July 2019. 

See When to Use Occu Collect.